
Glass £99 ' 
Book— C^ 7"/(^- 



/ 



MEMORIAL OF ANDREW TAYLOR, 

TO THE 

Hon. EDWARD HARDIN and BENJAMIN H. BREWSTER, 

Commissioners under the Cherokee Treaty of 1835, now in. 
session in Washington city, 

For the value of his pre-emption right to 160 acres of land, on 
which he resided at the date of the treaty, in Bradley county, Ten- 
nessee, where Cleveland now stands ; which, under the I'ith article 
of the treaty, he had a riirht to locate at the minimum Congress price 
of $1.25 per acre, which article is in the following words: " Those 
individuals and families of the Cherokee nation that are averse to a 
removal to the Cherokee country west of the Mississippi, and are 
desiroiLS to become citizens of the States where they reside, and such 
as are qualified to take care of themselves and their property, shall 
be entitled to receive their due portion of all the personal benefits 
accruing under this treaty, for their claims, improvements, and per 
capita, as soon as an appropriation is made for this treaty." 

" Such heads of Cherokee families as are desirous to reside 
within the States of North Carolina, Tennessee, and Alabama, sub- 
ject to the laws of the same, and who are qualified or calculated to 
become useful citizens, shall be entitled, on the ceatificate of the 
Commissionets, to a pre-emption right to one hundred and sixty 
acres of land, or one-quarter section, at the minimum Congress 
price, so as to include the paesent buildings or improvements of 
those who now reside there." 

" It is stipulated and agreed between the United States and the 
Cherokee people, that John Ross, James Starr, George Hicks, John 
Gunter, George Chambers, John Ridge, Elias Boudinot, George 
Saunders, John Martin, William Rogers, Roman Nose, Situake, 
and John Timson, shall be a committee on the part of the Chero- 
kees to recommend such persons for the privilege of pre-emption 
rights as may be entitled to the same under the above articles.' 

Under this provision of the treaty, your memorialist would have 
been entitled to a grant for IGO acres of land located at the place 
he owned improvements and resided at the date of the treaty, had 
not an anienclinent been made to the treaty which commuted his 
right to land for money to be in lieu of the land. 

" Art. 1. It is theiefore agreed thn.t all the pre-emption rights and 
reservations provided for in articles twelve and thirteen shall be, 
and the same are hereby, relinquished and declared void." 

"Art. 3. It is therefore agreed that the sum of six hundred thou- 
sand dollars shall be, and the same is hereby, allowed to the Che- 
rokee people, to include the expense of their removal, and all 
1 




2 

claims of every nature and description against the Government of 
tlie United States not herein otherwise expressly provided for, and to 
be in lieu of the said reservations ^nA pre-emptions.^' 

The undersigned, as you virill perceive in the certificate annexed, 
(marked A,) on the 16th day of February, 1837, made applica- 
tion to the committee appointed under the 12th article to recom- 
mend him and his family to the Commissioners acting under the 
authority of that and the 17th article as "being qualified or calcu- 
lated to become useful citizens ;" which recommendation was ob- 
tained and filed with the Commissioners, and was by them ap- 
proved, and their certificate annexed thereto on the 14th of May, 
1838. Also annexed, (marked B,) is the plat and certificate of 
survey of 160 acres of land, including his dwelling-house and im- 
provement, where he resided at the date of the treaty. 

Annexed, (marked C,) deposition of Messrs. Baldwin Harle and 
Alex. A. Clingan, (certified to be respectable citizens,) who prove that 
they were acquainted with your petitioner prior to and at the date 
of the treaty of 1835 ; that he was the head of an Indian family, and 
occupied the land, described in the plat annexed, at the date of the 
treaty, which was selected by the State for a county seat, and on 
which the village of Cleveland now stands. This is followed by 
the annexed deposition of Messrs. P. J. G. Lea and James Berry, 
(marked D,) who are certified to be respectable persons by state- 
ment of Hon. Spencer Jarnagin, (marked E ;) and are the same 
who acted as Commissioners of the State in locating the town 
of Cleveland, on the quarter section occupied by Andrew Taylor, 
prior to and at the date of the treaty ; which quarter section they 
prove to have been worth, at the date of the treaty, without the im- 
provements, $40 per acre — $6,400; deduct the minimum Congress 
price, ($1.25 per acre — $200,) would leave the pre-emption right 
to land, commuted for money, worth $6,200, on which your me- 
morialist requests a decree to be entered in his favor, and, at the 
proper time, a certificate on the Treasury of the United States to 
be issued therefor. *" 

Respectfully submitted. 

ANDREW TAYLOR. 

December 14, 1846. 



A. 

Certificate of citizenship for Andrew Taylor. 

I certify, that on the 16th day of February, 1837, Andrew Tay- 
lor, a white man, having Cherokee rights, was recommended by 
the committee to the United States Commissioners as capable of 
becoming a citizen of the United States, and that his name stands 
on the records of the committee. 

L. ROGERS, 
Secretary to Committee. 



-A 
a' 



1 



3 

Commissioners' Officf,, May 14, 1838. 
I cortify Ihnl the rocoinninndation of tlic cominill(>c for llic: abovo- 
mentioiied Andrew Taylor was reported by the coiniiiiltec to the 
Commissioners, and is on file in the Commissioners' oflice. 

JNO. C. MULLOY, 
Secretary to Commissioners. 



Approved, May 14, 1838 : 



TH. W. WILSON, 

One of the Commissioners. 
JAMES LIDDELL, 

Commissioner. 



Stake , 



Stake. 



SW. qr.ofSec. 27, T.2, R. 1 W. 
160 acres. 



51 Spring. 
Stake. S. 70° E., 40 chs. 




Stake. 




No magt. var. allowed. Scale of 20 chs. per inch. 

State of Tennessee, Bradley county: 

The above plate represents the southwest quarter of section 
twenty-seven, in township two, range one west, in the Oco-ee dis- 



trict, ill said State, containing one liundred and sixty acres, for- 
merly occupied by Andrew Taylor. 

Given under my hand, the 26th July, 1843. 

JOHN C. KENNEDY, 
Late Deputy Surveyor General nf the Oco-ee district, Tenn. 



C. 

Deposition of B. Hark and A. A. Clingan. 
State of Tennessee, Bradley county : 

This day came before me, James Mitchell, an acting Justice of 
the Peace in and for said county, Baldwin Harle, forty- eight years 
of age, and Alexander A. Clingan, forty-two years of age, both 
respectable citizens of said county, and, being duly sv^orn, say: 
that they are well acquainted with Andrew Taylor, and with the 
southwest quarter of section twenty-seven, in township two, range 
one west of the basis line, in the Oco-ee district, and that the said 
Taylor was in the actual possession of and resident upon the said 
quarter section of land at and before the treaty of 1835-6, and 
up to the timQ of the action of the legislation of said State which 
disposed of said quarter section to said county, for the use of the 
town of Cleveland, and tiiat the same was afterwards sold for sev- 
eral thousand dollars, and the said Taylor was thereby dispossessed 
and denied the right of entry on said quarter ; and he, the said Tay- 
lor, was the head of an Indian family, and that the town of Cleve- 
land now stands on the identical same quarter section of land. 

BALDWIN HARLE. 

ALEXANDER A. CLINGAN. 

Sworn to and subscribed before me, this 20th day of July, 1843. 

JAMES MITCHELL, 

Justice of the Peace. 



D. 

Depowition of P. J. G. Lea and James Berry. 

State of Tennessee, Bradley county: 

This day came before me, James Mitchell, an acting Justice of 
the Peace in and for said county, .P. J. G. Lea, aged about thirty- 
five years, and James Berry, aged about fifty-two, both respectable 
citizens of the aforesaid county, and, being duly sworn, say : that 
they are acquainted with Andrew Taylor and with the southwest 
quarter of section twenty-seven, township two, range one west of 
the basis line, in the Oco-ee district, and that this said quarter sec- 
tion of land was taken by act of the Legislature of Tennessee for 
the use of the town of Cleveland, and that said quarter section of 



land was actually entered by the Commissioners of sai<i town, and 
that we, the said Lra and Boiry, comj)ose part of the Board of Com- 
missioners for said town of Cleveland, a])|)ointe(l by the Legisla- 
ture of this State, and are yet actinir Coniniissioncrs for said town, 
and that we would value the land aforesaid at forty dollars per acre, 
by reason of the town havinir been located on said (juarter section 
of land at the time the said land was entered by said Commission- 
ers; and, also, it was worth the said forty dollars per acre imme- 
diately on and after the passage of the law authorizing the entry of 
the Oco-ee lands. 

P. J. G. LEA. 

JAMES BERRY. 

Sworn to and subscribed before me, this 25th day of July, 1843. 

JAMES MITCHELL, 

Justice of the Peace. 

State of Tennessee, Bradley county : 

I, John H. Robertson, clerk of the Bradley county court for the 
county of Bradley aforesaid, do certify that James Mitchell, whose 
name appears to the foregoing affidavit is an acting justice of the 
peace for said county. He was duly elected, commissioned, and 
sworn, and faith and credit is due to his official acts. 

Given under my hand, at office in Cleveland, July the 25th, 1843. 

J. H. ROBERTSON, Clerk. 

State of Tennessee, Bradley county : 

I, Robert M. Swan, Chief Presiding Justice for the county of 
Bradley, aforesaid, do certify that John H. Robertson, whose name 
appears to the foregoing certificate, is the clerk of the county court 
for said county, and his certificate appears in due form of law. 
Given under my hand and seal, this 26th day of July, 1843. 
ROBERT M. SWAN, [l. s.] 
Chief Presiding Justice for said County. 



E. 

Washington, 9th June, 1844. 

Dear Sir: Your note of yesterday has beeoi received, request- 
ing me to state whether I am not acquainted with Dr. Pleasant J. 
G. Lea and James Berry, Esq., of the town of Cleveland, Bradley 
county, Tennessee, and what I know of the intelligence, judgment, 
and veracity of those gentlemen. 

I have known both of them long and intimately, and I take 
pleasure in stating I feel myself honored by their acquaintance and 
confidence. As to their intelligence, judgment, and veracity, no 
one can be entitled to higher standing than they possess in the 
particulars to which you refer. I have myself the utmost confi- 



dence in the correctness of any thing either of them would say or 
do, and this confidence does not rest alone upon my personal 
knowledge of those gentlemen, but upon the reputation they have 
among their neighbors and acquaintances. 
Yours, &c., 

SPENCER JARNAGIN. 
Mr. Andrew Taylor. [U. S. Senate.'] 



F.— Docket No. 1. 

Copy of the proceedings of the Commissioners in the pre-emption claim 
of Andrew Taylor. 



Docket of Messrs. Eaton and Hubley. — Pre-emption claims. 




[Examined.] 20/A June, 1843. 
" Andrew Taylor. 
" Appraisement ordered. 
" A copy, 

" W. D. MILLER, Secretary" [of the Board.] 



Docket of Messrs. Washington and Mason. — Pre-emption claims. 



No. 9. 


20th June, 1843. 
" Andrew Taylor. 
" Appraisement ordered. 

" Received the papers in the above claim November 
25, 1844. 

" WM. H. THOMAS. 




" A copy, 

" D. W. MILLER, Secretary" [of the Board.] 



Entry on Judge Hubley's notes of the proceedings of the Board. 



"Andrew Taylor. 

" Pre-emption. 

" 22d August, 1843, examined papers and valuation 

ordered. 

" A copy, 

"W. D. MILLER, Secretary["[of the Board.] 




ARGUMENT 

In support of the accompanying claim of JlnJrew Taylor, and in reply 
to the jtrevious opinion of Messrs. Washington and Mason. 

Andrew Taylor ) 

vs. > For a Pre-emption. 

The United States, ) 

This case was submitted to the former Commissioners, Messrs. 
Eaton and Hubley, by whom an examination was had, and an ap- 
praisement ordered, as apjjcars by the record. Tliey omitted, how- 
ever, to place it on the list furnished to the valuing agents ; and 
thus it remained, when replaced on the docket of their successors, 
Messrs. Washington and Mason. 

The undersigned, being subsetjuently employed in the case, ob- 
tained leave to withdraw the papers, for the purpose of examining 
them, and gave his receipt therefor, dated November 25, 1844. 

The late Commissioners, however, proceeded to draw up an 
opinion, or signed one, which was drawn up for them, on this case, 
notwithstanding it had already been adjudicated by their predeces- 
sors, and the papers were at the time withdrawn from before the 
Board, by permission granted by themselves. This opinion was 
entered on the record, as a decree against pre-emptions generally, 
under date the 26th November, 1844. 

As soon as this came to the knowledge of the undersigned, he 
applied to the Board for a rehearing, which was granted, as appears 
from the following quotation from the records : 

" December 7, 1844. A motion having been made by W. H. 
" Thomas for a reconsideration of the decree averse to pre-emption 
" rights ; and his motion is on file, and is granted." (See Docket 
No. 1, on file in your ollice.) 

On this state of facts, the case is now submitted to the j)resent 
Board. The accompanying memorial briefly but fully explains its 
character. 

But there are some positions, taken in the before-mentioned 
opinion, so peculiar and wholly untenable, that it seems proper ta 
the undersigned to take a short review of them. It would be use- 
less to follow this opinion through all its forward and retrograde 
movements, its repetitions, misstatements, and contradictions. 
When sifted, the following are the chief arguments in opposition 
to the claim : 

I. That' " a claim could only vest on a full compliance by the 
pre-emptors with the treaty stipulations of 1835, had they remained 
in force ;" that those stipulations (which were, that the claimants 
should obtain the certificate of the Commissioners, that they were 
qualified or calculated to become useful citizens, and pay the mini- 
mum Congress price, $1.25 per acre, for the land) could not be 
complied with ; because, pre-emptions and reservations having 



been surrendered by the supplemental article, there cxisterf no tri' 
bunal legally auliiorized to oraut such certificates; and that " suclr 
certificates were illegal and void, if intended to convey any privi- 
lege or right not conceded by the treaty." 

It seems to have been fiDrgotten by those who signed this opin- 
ion, that the claim now under consideration is not fiar the land 
itself, but for the money allowed by the supplemental article in 
lieu of pre-emption rights, to those to whom said rights were se- 
cured by the 12th article of the treaty. It is labored to prove what 
is not denied or controverted, namely : that no certificates could 
be granted to entitle the holder to the land itself — when the claim 
is not for the land, but for the money, which was allowed in lieu 
of the land, or in consideration for the rights of pre-emption sur- 
rendered. Admitting that such certificates would be of no value, 
so far as they went to entitle the holder to the land, they were yet 
legal, good, and valid, so far as they went to designate those who, 
having been entitled to the land under the 12th article, were en- 
titled to the money allowed by the 3d supplemental article for the 
land which they were forced to surrender. 

It will be freely admitted that "a claim could only vest on a full 
compliance with the treaty stipulations of 1835, had they remained 
in forced But so far as the payment of the minimum Congress 
price ($1.25) is concerned, they did not remain in force; and the 
undersigned is really at a loss to imagine the purpose, object, or 
bearing of the assertion, that "there is not a shadow of evidence 
" to show that, in a single instance, any patent for any such land 
" was ever demanded, or one cent ever tendered to the United 
" States Land Office, or to the States within whose limits the lands 
" were located, in payment of the same." Of course no patent was 
demanded and no money paid, because the stipulations of the 
treaty, which permitted and required that, did not remain in force ; 
the right to buy land at the minimum Congress price having been 
surrendered, and a sum of money allowed to those entitled to that 
privilege, in lieu thereof 

II. It is argued that the sum of $600,000, allowed in the 3d sup- 
plemental article " to include the expense of removal and all claims 
of every nature and description, and to be in lieu of the said reser- 
vations and pre-emptions, and of the sum of $300,000 for spolia- 
tions," is too small to admit the presumption that any part was to 
be paid in lieu of pre-emption rights, though so expressly and pos- 
itively stated in the treaty ; " it being well known that the expense 
of removal and spoliations far exceeded the whole $600,000 thus 
appropriated," in the words of those who signed this opinion. 
They add, that spoliations and removal should be preferred claims, 
and that, " if any residue of the sum appropriated was even intend- 
ed to apply to pre-emption privileges, none such exists, for the 
fund above mentioned is exhausted." 

Here it may be remarked, that in the quotation in the opinion, 
of " all claims of every nature and description," the important qual- 



ificntion, " not heroin otiierwiso expressly provided for," onofht nol 
to have l)een oinitfcd, il'llio intention was to make a fair quotation. 
It must also be remarivod, tliat an important fact seems here to 
have been either forgotten or purposely overlooked, namely : that 
by act r2th June, 1S38, $1,047,000 was ajjprojiriated, in addition 
to the above-named sum of $600,000, to be applied to the objects 
and purposes t;pecitied in the 3d supi)l('niental article. And in 
re])ly to this ar<rument of the opinion, llie undersigned must (juote 
tin; next Jiage of the same opinion, where it is asked: " Is it ("or a 
moment to be imagined that the (government of the United States, 
in dealing with a weak tribe of Indians, would tarnish its charac- 
ter for liberality and fair dealing by an act of such injustice :" 

The case is this : The Government of the United States, in the 
opinion, determined to force a weak tribe of Indians, against their 
will, to make a treaty ceding to it their lands. The Indians in- 
sisted that to those of their people who remained in the States and 
became citizens, the same liberality should be extended as had 
been shown to other Indian tribes, their neighbors, to whom re- 
servations of 640 acres had been allowed. Tlu; United States Com- 
missioner, admitting the force and justice of this demand, proposed, 
as a compromise, to give to those who remained the same privi- 
lege which white citizens of the United States have, to retain a 
small quantity of land, cultivated and improved by their own labor, 
on the payment of $l.'2o per acre; which compromise was ac- 
cepted, and a treaty concluded. 

A delegation of the Indians was appointed to accompany the 
Commissioner to Washington, with instructions to use their best 
influence with the Red Clay delegation to sign this treaty, and to 
do what might be necessary to secure its ratification by the Sen- 
ate. The President, however, and not the Senate, insisted upon a 
surrender of the pre-emption rights. It is very doubtful, to say the 
least, whether the delegation had any authority to consent to such 
surrender. To obtain their consent, however, and make a show of 
fair dealing, a sum of money was j)romiscd to be allowed ?;i /?Vm o/" 
and in consideration for these rights, which the Indians were forced 
to surrender, and of other claims. But the sum alloweil was in- 
sufhcient, and the argument is, that " it is therefore to be presum- 
ed that it was not the inteniion of the Government of the United 
States to pay any thing lor the surrender of pre-emption rights thus 
obtained. But if those who signed this o[)inion be correct in this, 
then it necessarily a])pears that the President and Senate of the 
United States intended to overreach tlu; Indians by naming an 
insulhcient sum. The Indians were forced, at the point of the 
bayonet, to stand l)y the surrender, though tin; consideration has 
failed. The consideration |)romised, as the oi)inion argues, is and 
was intended to be insullicient and a cheat, and the Government 
of the United States is made to appear to the Indians, to its own 
citizens, and to the world, in the light of a knavish and fraudulent 
bankrupt, who, claiming that his assets have been exhausted by 





10 

preferred creditors, pleads bankruptcy to avoid payment of what he 
had promised, while he, or his family holdiug for him, are still in 
enjoyment of the land for which paymnet is claimed. 

But the imputation here cast upon the Government of the United 
States by those who signed this opinion is wholly without founda- 
tion ; for, by the act of the IQth June, 1838, as before stated, 
$1,047,000 was appropriated for the objects and purposes speci- 
fied under the third supplemental article, part of which is now, or 
ought to be, in the Treasury. 

The third objection to this claim, which indeed seems to be the 
chief objection, and is argued backwards and forwards throughout 
the opinion, is, that the money allowed by the third supplemental 
act was given to the Cherokee nation, and not to any individuals. 
It would be an unnecessary waste of time to notice all the views 
taken in support of this position. The absurdity of most of them 
is apparent. Some are directly contradictory and refute each other. 
As, for instance, it is argued that " the Cherokee lands were held 
" by the people of the nation in common, and with them there 
" were no exclusive or privileged classes, who could claim title to 
"one acre of land more than the humblest citizen of the nation." 
Now this, if it has any meaning or application to the question,- 
means that there were no exclusive or p-ivileged classes, without 
reference to the qualification added of " claiming title to more land 
"than the rest." Yet, in the very next sentence, it is said that 
" the 12th article was introduced to conciliate the wealthier and 
''^ more influential classes to a sale of the country, which the Gov- 
'^' ernment had determined to force upon them." And on the sec- 
ond page following express reference is made to an exclusive and 
jirivileged class, who have been paid for "improvements abandon- 
ed," which payments were made to the individuals, and not to the 
nation. 

But the chief argument relied on to prove that this was a national 
fund is, that it is allowed to the " Cherokee people." Now, if this 
is so as to that part of the $600,000 which was to be in lieu of pre- 
emptions and reservations, it also applies to that allowed for re- 
moval and all other claims, &c., and to the $300,000 for spoliations. 
If so, why were some individuals allowed a commutation in money 
fsr the expense of their removal, and why were claims for spolia- 
tions, &c,, allowed and paid to individuals, when the whole sum 
was allowed to the Cherokee people collectively, as- a nation, and 
for a national fund ? Will not the Government of the United States, 
which, if this position be tenable, who has paid to individuals for 
removals, spoliations, and other claims, a large sum belonging to 
the nation, be compelled to refund to the nation the amount which 
it, as trustee, has wrongfully paid to those not entitled to it? But 
besides that, the practice as to one part of this fund of the same 
Commissioners who signed this opinion, contradicts the position, 
they now assume as to another part of the same fund. Their po- 
sition in this matter is otherwise aknost too absurd to merit a se- 



11 

nous refutation ; llio more especially as the veiy wonls of the vid 
article, quoted by them as an explanatory |)reaml)le and introduc- 
tion to the 3d supplemental article, on their very face utt(!rly refute 
the position taken hy those wiio (juotc them, as follows: 

"That the $;),000,000 allowed to the Cherokee ])eople for their 
" lands was not intended to include the amount recpiired to remove 
"them, nor the value of certain claims n^L many of Ihcir peopled 

Here the very words (pioted hy the opinion to prove that the 
$600,000 was a national lund, plainly show that it was intended 
for many of \\\g people, and not tor the nation. 

The argument that, because the suri)lus left, if any, after pay- 
ment of the claims of individuals for removal, spoliations, ])re-emp- 
tions, »x.c. &.C., was to be turned over and belong to the education 
fund, that therefore the whole sum was a national fund, is on a par 
with the rest. For this very application of the surplus of the small 
sum so soon exhausted, as alleged by the opinion, proves that the 
surplus only, had any remained, was to be a national fund, and that 
only after the claims of individuals had been first paid. 

Again : The opinion quotes United States Commissioner Scherm- 
erhorn, in which, speaking of those Cherokees who were to remain 
east, he says: " They will have paid to them here all that is due 
them from their claims, improvements, and per cajjita allowance, 
removal, and subsistence, but they must purchase their own lands 
like other citizens, and settle where they please, subjects of the 
laws of the country where they live." 

Upon this it is remarked that " there is not one word here said 
about pre-emptions." Ergo, the claim should be rejected. 

Now, it must be remembered that Mr. Schermerhorn made two 
reports : 

Te first was the proposition of the Government of the United 
States, which submitted to the Cherokees, in council, convened 
for the purpose of deciding on the propositions, which they refused 
to accept. (See report referred to in Senate Doc. 120, page 459.) 

In his second report, which accompanied the journal of the ne-- 
gotiation of the treaty, he says the Cherokees insisted on reserva^ 
tions being granted in favor of such of their people as desired to 
remain in the States ; in order to get over this difficulty, and re- 
move their opposition, he had substituted for that class a limited 
number of pre-emption rights, not to exceed in all four hundred, 
(See Senate Doc. No. 120, page 513.) 

That, subsequently to the first report, it was agreed that pre- 
emptions should be allowed to certain of the Cherokee people, 
and the treaty so concluded ; and that, subsequently again to that, 
a new arrangement was entered into, and money allowed in lieu 
of pre-emptions, which were surrendered. Now, when these facts 
are borne in mind, the <piotalion of JNlr. Schermerhorne's first report, 
in the connexion in which it is used, necessarily strikes the reader 
with surprise. It is not to be presumed that those who signed that 
paper could be guilty of intentional injustice or misrepresentation, 



12 

or that, if they were aware of the second report, they woukl quote 
the first and omit or suppress the second. It is, therefore, to be 
presumed that this seeming improper quotation of the first and sup- 
pression of the second report, like the other errors of this opinion, 
is ratlier to be attributed to tlie facts that those who signed it did 
not take the trouble to investigate the question, and were sadly ig- 
norant of the material facts of the case upon which they were giv- 
ing an opinion. But if the omission of the first report to mention 
pre-emptions is good evidence to prove that the money subse- 
quently allowed in lieu of pre-emptions was only intended by the 
President and Senate of the United States as a mere bait to cozen 
the Indians, to whom pre-emption rights were secured by the r2th 
article of the treaty, into a surrender of those rights, and that the 
Commissioners, in deciding upon these claims, are to act on such 
a supposition, his subsequent report is good evidence to prove that 
pre-emptions were granted in the treaty. At the same time the 
words of the 3d supplemental article, and the act of 12th June, 
1838, show that, although the Government of the United States 
forced those Cherokees, to whom the treaty granted pre-emptions, 
to surrender their rights under the treaty, yet, mindful of its high 
character for justice and fair dealing, a liberal allowance of money 
was made to that class as a comj)ensation for this surrender of their 
rights. And if he, who made both reports and concluded the treaty, 
and was familiar with the whole proceeding's, may be deemed a 
competent exponent of what were the intentions of the parties to 
this treaty between a great and powerliil Government on the one 
part, and a weak tribe of Indians, wlio were to be forced to sur- 
render their homes and the graves of their fathers, on the other ; 
or if he may be taken as a proper exponent of what honor and good 
faith and a decent legard for the character of the President and 
Senate, who made this treaty, require of the Commissioners ap- 
pointed to decide justly on these claims, tlien the undersigned begs 
to submit his express and positive statements to rebut the infer- 
ences improperly drawn from his first report. In a written statement 
on this subject, speaking of one of this cla^^s of claimants, he says: 
" He is one of the ' heads of a Cherokee family' wlio, by the 12th 
"article of the treaty, became a citizen of the United States, and 
"one whom I consider, in virtue of this 12th article and 3d supple- 
" mental to it, entitled to a fair compensation for his pre-emption 
"right to 160 acres of land, and all the personal benefits arising 
" the treaty." (See statement, in his own handwiiting, in the case 
of David Taylor, on file.) 

There is another position taken in this opinion, which is worthy 
of notice only that from it we may judge of the rest. It is as fol- 
lows ; 

"As vye have before remarked, when this supplement was 
" agreed upon, the land had already been ceded to the United 
" States by the 1st article of the original treaty, which was subse- 
' qtiejilly ratified by the President and Senate. Not a vestige of 



13 

"title romaincd in Chcrokocs, coUcclivcIy or iridivuliKilly. It was 
"exclusively the property of the Unifed Statcis, for whom it was 
" purchased." 

Froiu this it would .seom that the persons who signed this opin- 
ion held tliat the treaty had liill force and ellbct from the moment 
ofilsbeintT sitrned by the United State's Commissioners and the 
Indian deletratcs, and before it was submitted to and raliiied by the 
Senate, and si<Tned by the President. It is dillicidt to reconcile 
this position witli the conclusion to which the oj)inion finally 
conies. If the treaty was bindinij as to part, it was bindinjr as to 
the whole, and the same instrument which devested the Cherokees, 
individually and collectively, of every vestige of title to their lands, 
and made them exclusively the property of the United States, as 
asserted, gave certain rights of pre-emjitions to this class of claim- 
ants, which became as fully and exclusively their property by a 
vested title. By what right, therefore, could the President of the 
United States insist upon a surrender of these rights, or refuse to 
recognise them ? And since, in order to obtain tlie consent of the 
delegation to this surrender, it became necessary to promise, and 
was promised, that money should be given to those whose rights 
were surrendered, in lieu of those rights, how can this claim be 
now rejected, unless, indeed, it be upon one of the suppositions of 
this opinion, to wit : that the sum of money promised was pur- 
posely insufficient, a mere shadow and bait held out lor the j)ur- 
pose of deceiving a weak tribe of Indians into a sale of their lands, 
of which the great and magnanimous Government of the United 
States had determined, by force and fraud, to get possession ? It 
is needless to repeat before this Board that this supposition should 
be indignantly rejected. 

Again : The late Commissioners say: 

" But does it come even within the range of probability that the 
" Cherokees, as a nation, would ever have consented that a few 
" hundred fortunate individuals of their tril)e, who succeeded in 
" obtaining reconmiendations from the Indian committee and cer- 
" tificates from the United States Commissioners, should have and 
" exercise a privilege to the exclusion of the nation ; and the gen- 
" eral fund intended for the benefit of all the people, and which was 
" to be distributed per capita among them after the liquidation of 
" certain claims, should thus, and to so large an amount, be charged 
" on that fund, and be diverted from its general and equitable ap- 
" j)lication." 

The undersigned is at a loss to understand the meaning of this 
very complex sentence. Can it be seriously asked whether the 
Cherokees could ever have consented to pre-emption rights in fa- 
vor of those who remained in the States? Docs not the treaty, and 
the report of the Commissioner wlio made it, directly pro\e that 
the Cherokee nation not only consented that " a few hundred for- 
tunate imlividuals'' should enjoy the privilege of pre-emption, but 
even insisted \ery strenuously on their being allowed a greater 



14 

privilege, t<?\vit: reservations of 640 acres, as was promised by the 
8th article of the treaty of 1817, when the remainder should be 
ceded to the United States, and only consented to reduce their de- 
mands to the lesser privilege of pre-emptions as the best compro- 
mise that, in their weakness and destitution, they could obtain of 
the liberality of the Government of the United States. 

The last part of the sentence above quoted and the succeeding 
passages are almost unintelligible. The purport of the latter is to 
show that pre-emption claims, if admitted, would number one thou- 
sand, and amount to $2,400,000. This estimate is admitted to be 
extravagant. Its iaisity is exposed by the report of the Commis- 
sioner, which expressly stated that the number of pre-emptions was 
not to exceed four hundred. The fact is that they do not number 
more than about half as many as was contemplated, and less than 
$100,000 will cover the whole amount. 

But the most surprising objection of the late Commissioners to 
this claim is, that the claimant is a white man, married to a Che- 
rokee woman, and therefore not entitled to the rights secured to 
" heads of Cherokee families," under the treaty. This objection is 
not only at variance with the well-established construction given to 
the treaty by the Government and by the former Commissioners, 
but herein the late Commissioners are surprisingly inconsistent 
with themselves, they having repeatedly recognized the Cherokee 
character of white men married to Cherokee women, and having 
allowed and caused to be paid other claims to the present claim- 
ant himself, amongst others. But it is needless to pursue this 
matter further, the present honorable Board having already been 
called upon to express their disapprobation of the views of the late 
Commissioners on this point. (See pamphlet of Cherokee laws, 
page 10, quoted in Wheeler's case.) 

Equally surprising is the citation of " the interdictions of the 
intercourse law," by which, the undersigned supposes, is meant 
the law of 1834. For it is matter of astonishment that the late 
Commissioners should be ignorant of repeated decisions by the 
Government to the effect that that law applied only to the Chero- 
kee country west, and not to the country east. (See letter of C. 
A. Harris, acting Secretary of War, to General Wool, dated Au- 
gust 13, 1836, in which it is said: "In relation to the confine- 
" ment or removal of Mr. Jones, or any other white person, I have 
" to observe that, as the intercourse act of 1834 does not extend to 
" the Cherokee country, I am not aware of any law authorizing 
" either measure.") 

As to the remark that the claimant, being a white man, " already 
" had a right to locate on any of the unappropriated public domain, 
" and become a pre-emptor under the laws of the United States," 
the undersigned cannot conceive how his rights, as a white citi- 
zen, can, with a decent regard to good faith, be permitted to re- 
strict or prejudice his rights as an acknowledged head of a Chero- 
kee family, contemjilated by the treaty. Had such a doctrine been 



IT) 

proinulgaU'd by llio Coimnissioners sent lo inako the treaty, no 
treaty would liave been made. And it woidd be as just now to- 
refuse payment of a ])re-enij)tion claim to a full-blooded Cherokee 
on the ground that, havinir been made a citizen of the United 
States by the treaty, he has thereby accjuired a right to locate on 
any of tlie unappropriated jjublic domain. 

But if, by this remark, it is meant that the claimant, as a white 
man, might have taken a pre-emption to 160 acres of land, on 
wliich he lived at the date of the treaty, and which he had cultivated 
and improved by his labor, it is incorrect. For, under the treaty, 
as amended by tlie supplemental act, commuting the pre-emption 
rights of the Ciierokees who remained east into money, the lands 
were claimed exclusively by the States which passed laws for the 
.sale thereof without pre-emjjtion privileges (at $1 25) either to 
white men or Ciierokees. And in the case of this claimant j)ar- 
ticularly, by act of the State of Tennessee, the land which he had 
settled, cleared, cultivated, or improved, and to which by the 12th 
article of the treaty he was entitled to a pre-emption, as the head 
of a Cherokee family, was taken from him and located as a town 
site for the county seat of Bradley county. 

In conclusion, the undersigned must be permitted to say, that he 
has good reason to believe that this opinion, though signed by the 
late Commissioners, was in part, if not all, penned for them by 
Colonel S. C. Stambaugh, the counsel for the Western Cherokees, 
who asked permission to appear before the late Board, as he has 
done before the present, in opposition to the claims of the Chero- 
kees east, basing his rccjuest upon the ground that he was cm- 
ployed as counsel for the Western Cherokees, and therefore de- 
sired to increase their amount by diminishing the sum to be ])aid 
east. He therefore proposed to divert fiom its proper application, 
and have paid to the Western Cherokees, the sum which was al- 
lowed to the Cherokees who remained east, in lieu of pre-emp- 
tions. For this reason, the undersigned feels called upon to notice 
the fact, that Colonel Stambaugh was previously employed and filed 
written arguments in several claims similar to the present, which 
were allowed and paid.* These arguments, however, have been 
abstracted from the liles of the Board ; had they not been so. ab- 
stracted, the arguments of Colonel Stambaugh, both pro and con, 
would have been befoie the Board, and this long review of his later 
efforts might have been unnecessary. 

The proceedings had on this claim by Messrs. Eaton and Hub- 

• See claims on file in your office, viz : 

Gideon F. Morris, (white man,) book F, page ----- 12 
David Taylor, (while man,) do. - - - - - 2.') 

Wacheecha, (or Grasshopper,) do. - - - - - 31 

Nancy Calatahe, do. ----- 32 

Lucy Teseskec, do. . - ... 39 

In which Colonel Stambaugh and Judge Bryan acted as counsel for the claim- 
ants, and received leu per cent, each for tiicir services on the sums allowed. 



16 

ley arc contained in pnpcr marked F, referred to, which shows that 
the claim has ah'eady been examined and ordered to be valued, 
and the last Board having left this case where they found it, the 
present Commissioners are requested to enter a decree nunc pro- 
tune, unless it be determined to commence denovo on all the claims 
that have been examined^by your predecessors. The papers with- 
drawn by me in this case on the 24th of November, 1844, are here- 
with returned, and respectfully submittad for your consideration and 
decision thereon. 

Respectfully submitted. 

WM. H. THOMAS, 
Attorney fo)' Claimants East. 
December 14, 1846. 



LEJe'lO 



